SHAREHOLDERS' AGREEMENT
between
CARNIVAL CORPORATION
and
DAVID CROSSLAND
Dated February 21, 1996
TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
2. Restrictions on Transfer of Shares . . . . . . . . . . . . 3
2.1 Limitation on Transfer. . . . . . . . . . . . . . . . 3
2.2 Permitted Transfers . . . . . . . . . . . . . . . . . 4
2.3 Permitted Transfer Procedures . . . . . . . . . . . . 5
2.4 Agreement to be Bound; Substitution of Transferee . . 5
2.5 Registration Rights . . . . . . . . . . . . . . . . . 5
3. Notice of Proposed Transfers.. . . . . . . . . . . . . . . 6
4. Directors. . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Election of Directors . . . . . . . . . . . . . . . . 7
4.2 Removal and Replacement . . . . . . . . . . . . . . . 8
4.3 The Existing Shareholder. . . . . . . . . . . . . . . 9
4.4 Purchaser's Appointment of the Existing Shareholder . 9
5. Exceptions to Restrictions . . . . . . . . . . . . . . . . 10
6. Stock Certificate Legend . . . . . . . . . . . . . . . . . 10
7. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . 11
7.1 Notices . . . . . . . . . . . . . . . . . . . . . . . 11
7.2 Amendment and Waiver. . . . . . . . . . . . . . . . . 13
7.3 Specific Performance. . . . . . . . . . . . . . . . . 13
7.4 Headings. . . . . . . . . . . . . . . . . . . . . . . 14
7.5 Severability. . . . . . . . . . . . . . . . . . . . . 14
7.6 Entire Agreement. . . . . . . . . . . . . . . . . . . 14
7.7 Term of Agreement . . . . . . . . . . . . . . . . . . 14
7.8 Variations in Pronouns. . . . . . . . . . . . . . . . 15
7.9 Governing Law . . . . . . . . . . . . . . . . . . . . 15
7.10 Jurisdiction and Venue. . . . . . . . . . . . . . . . 15
7.11 Further Assurances. . . . . . . . . . . . . . . . . . 16
7.12 Successors and Assigns. . . . . . . . . . . . . . . . 16
7.13 Counterparts. . . . . . . . . . . . . . . . . . . . . 16
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT, dated February __, 1996 (this "Agreement"),
between Carnival Corporation, a Panamanian Corporation (the
"Purchaser") and David Crossland (the "Existing Shareholder").
W I T N E S S E T H :
WHEREAS, the Purchaser and Airtours plc, a company incorporated
under the laws of England and Wales (the "Company"), have entered
into a share subscription agreement ("the Subscription Agreement")
whereby the Purchaser has agreed to subscribe for 20 million
Ordinary Shares of the Company for L5.00 per Ordinary Share, upon
the terms and subject to the conditions contained therein (the
"Share Subscription");
WHEREAS, the Purchaser and the Company have announced that the
Purchaser intends to commence a partial offer for up to 20 million
Ordinary Shares of the Company and a partial offer for up to
8,758,612 Preference Shares of the Company, upon the terms and
subject to the conditions set forth in the press announcement (a
copy of which is annexed hereto) to be dated February ___, 1996 (the
"Partial Offers");
WHEREAS, the Existing Shareholder and Thomas Trickett have agreed,
subject to the Partial Offers becoming unconditional in all respects
and the obligations of the Existing Shareholder and Thomas Trickett
pursuant to the irrevocable undertakings of even date herewith not
having terminated pursuant to paragraph 4.5 thereof, to sell to the
Purchaser such further number of Ordinary Shares (the "Share
Purchase") so that after the Share Subscription, the Partial Offers
and the Share Purchase are consummated the Purchaser shall own
40 million Ordinary Shares and up to 8,758,612 Preference Shares.
WHEREAS, in order to induce the Purchaser to consummate the Share
Subscription, the Partial Offers and the Share Purchase, the parties
hereto wish to restrict the transfer of the Ordinary Shares and the
Common Stock of the Purchaser to be held by the Existing Shareholder
immediately following completion of the Share Subscription, the
Partial Offers and the Share Purchase.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
21. Definitions.
As used in this Agreement, the following terms shall have the
meanings set forth below:
"Board of Directors" means the Board of Directors of the
Company.
"Closing Date" means the date on which the Partial
Offers become or are declared wholly
unconditional.
"Common Stock" means shares of Class A Common Stock,
par value $.01 per share, of the
Purchaser (including any other capital
stock of the Purchaser into which the
Class A Common Stock may be
reclassified or reconstituted and also
including any capital stock of the
Purchaser arising from such Common
Stock by reason of any stock split
and/or consolidation in relation to
such stock).
"Family Members" has the meaning assigned such term
in Section 2.2.2.
"Family Trust" has the meaning assigned such term in
Section 2.2.2.
"Involuntary Transfer" means any transfer, proceeding or action by
or in which the Existing Shareholder shall
be deprived or divested of any right, title
or interest in or to any Ordinary Shares,
including, without limitation, any seizure
under levy of attachment or execution, any
transfer in connection with bankruptcy
(whether pursuant to the filing of a
voluntary or an involuntary petition under
the bankruptcy laws of England and Wales or
elsewhere) or other court proceeding to a
debtor in possession, trustee in bankruptcy
or receiver or other officer or agency.
"Ordinary Shares" means ordinary shares of 10p each
in the capital of the Company
(including any other shares in the
capital of the Company into which
such ordinary shares may at any
time be converted and also
including any shares in the capital
of the Company arising from the
same by reason of any subdivision
and/or consolidation of such
Ordinary Shares or by reason of any
issue of shares in the Company by
way of capitalisation of reserves).
"Permitted Transferees" has the meaning assigned such term
in Section 2.2.
"Person" means any individual, firm, corpora-
tion, partnership, limited liability
company, trust, incorporated or
unincorporated association, joint
venture, joint stock company,
governmental body or other entity of
any kind.
"Shares" means all such Ordinary Shares as are
held by the Existing Shareholder
immediately following completion of the
Partial Offers and the Share Purchase
and all such Common Stock as is
received by the Existing Shareholder
pursuant to the Partial Offers and the
Share Purchase.
"Shareholders" shall mean the Existing Shareholder and
any Permitted Transferee and the term
"Shareholder" shall mean any such
Person.
"Shareholders' Meeting" has the meaning assigned such term
in Section 4.1.
"transfer" has the meaning set forth in Section
2.1.
"Written Resolution" has the meaning set forth in
Section 4.1.
22. Restrictions on Transfer of Shares.
22.1 Limitation on Transfer
Prior to the second anniversary of the Closing Date, the Existing
Shareholder shall not sell, give, assign, hypothecate, pledge,
charge, encumber, grant a lien or security interest in or
otherwise transfer (whether by operation of law or otherwise) any
Shares or any right, title or interest therein or thereto
(including, without limitation, any beneficial interests or voting
rights in the Shares)(each a "transfer"), except (i) in accordance
with the provisions of this Agreement or (ii) with the consent of the
Purchaser or (iii) any transfer by way of
acceptance of the Partial Offers or in implementation of the Share
Purchase; or (iv) any Involuntary Transfer. Any attempt to transfer
any Shares or any rights thereunder in violation of the preceding
sentence shall be null and void ab initio and, with respect to
Common Stock, the Purchaser shall not register any such transfers.
For the avoidance of doubt neither the provisions of this Section
2 nor the provisions of Section 3 shall apply to any Ordinary Shares
acquired by the Existing Shareholder after Completion of the Partial
Offers and the Share Purchase or to any Common Stock acquired by the
Existing Shareholder otherwise than pursuant to the Partial Offers
and the Share Purchase.
22.2 Permitted Transfers
Notwithstanding anything to the contrary contained in this
Agreement, the Existing Shareholder may transfer Shares in
accordance with Section 2.2 and Sections 2.3 and 2.4 (the Persons
to whom the Existing Shareholder may so transfer Shares (other
than a transfer under Section 2.2.2) being referred to hereinafter
as "Permitted Transferees").
22.2.1 Transfers by the Existing Shareholder
At any time, the Existing Shareholder may transfer any or all
of his Shares to a member of his immediate family, which
shall include his parents, spouse, siblings, children (and
any children of his spouse or former spouse) or grandchildren
(and any grandchildren of his spouse or former spouse)
("Family Members"), or a trust, corporation, limited
liability company or partnership, all of the beneficial
interests in which shall be held by him or one or more of his
Family Members (collectively, a "Family Trust"); provided,
however, that during the period any such trust, corporation,
or partnership holds any right, title or interest in any
Shares, no Person other than David Crossland or one or more
of his Family Members may be or become beneficiaries,
stockholders, members or limited or general partners thereof.
22.2.2 Exchange Transactions
At any time, the Existing Shareholder may sell Shares;
provided, that the aggregate sales proceeds (net of selling
expenses and brokerage costs, but not any applicable taxes)
from such sales ("the Permitted Sales") made at any time
after this Agreement becomes effective (whether or not during
the two years following the Closing Date) may not exceed L25
million. The Existing Shareholder may also sell Shares
generating sales proceeds (net of selling expenses and
brokerage costs) of up to a sum equal to the amount of any
capital gains tax payable in respect of the Permitted Sales
(and/or in respect of the sale of Shares in accordance with
this sentence) provided that such sale proceeds (net of
selling expenses and brokerage costs) do not exceed L10
million in the aggregate. In addition to any Shares which
may be disposed of in accordance with the preceding two
sentences, the Existing Shareholder may sell Shares such that
the aggregate sale proceeds (net of selling expenses and
brokerage costs, but not any applicable taxes) from such
sales equal the amount of the capital gains tax, if any,
payable by the Existing Shareholder in respect of his
disposal of Ordinary Shares in the Partial Offers and/or the
Share Purchase (including capital gains tax payable as a
result of sales of Shares in accordance with this sentence).
For purposes of this Section 2.2.2, any sales in U.S. dollars
shall be converted into pounds sterling on the basis of the
noon buying rate in New York City for pounds sterling as
certified for customs purposes by the Federal Reserve Bank of
New York, in each case, on the date or dates on which such
Shares are sold.
22.3 Permitted Transfer Procedures
If the Existing Shareholder wishes to transfer Shares under this
Section 2, the Existing Shareholder shall give notice to the
Purchaser of its intention to make any transfer permitted under
this Section 2 not less than seven (7) days prior to effecting
such transfer, which notice (in the case of a transfer under
Section 2.2.1) shall state the name and address of each Permitted
Transferee to whom such transfer is proposed and the number and
type of Shares proposed to be transferred to such Permitted
Transferee or, with respect to any transfer under Section 2.2.2,
the number and type of Shares to be sold and the proposed date or
dates of sale (it being understood that the Existing Shareholder
shall be under no obligation to sell any Shares on such date or
dates and that he shall be entitled to sell the relevant Shares
on (an) alternative date(s) without giving any further
notification hereunder Provided that such Shares are sold not less
than eight (8) days after the relevant notification has been given
hereunder and not more than 30 days after the proposed date (or
the last of the proposed dates) for such sale(s) referred to in
such notification).
22.4 Agreement to be Bound; Substitution of Transferee
No transfer (other than a transfer pursuant to Section 2.2.2) may
be made pursuant to this Section 2 unless the Permitted Transferee
has agreed in writing in respect of the Shares so transferred to
be bound by the terms and conditions of this Agreement. With
respect to the Shares transferred to a Permitted Transferee, the
Permitted Transferee shall be substituted for, and enjoy the same
rights and be subject to the same obligations, as its predecessor
hereunder.
22.5 Registration Rights
If the Existing Shareholder proposes to transfer any Common Stock
received pursuant to the Partial Offers and the Share Purchase,
other than in contravention of the provisions of this Agreement,
the Existing Shareholder may request that its United States
securities counsel (which shall be Cleary, Gottlieb, Stein &
Hamilton or another United States securities counsel designated
by the Existing Shareholder and reasonably acceptable to the
Purchaser) ("Shareholder Counsel") deliver a legal opinion to him
and the Purchaser that the proposed transfer can be made without
registration under Section 5 of Securities Act of 1933, as amended
(the "Act"), subject to customary assumptions and qualifications
(the "Securities Law Opinion"), which legal opinion shall be
reasonably satisfactory to the Existing Shareholder and the
Purchaser. If Shareholder Counsel is unable to deliver the
Securities Law Opinion, then the Existing Shareholder may request
that the Purchaser's United States securities counsel (which shall
be Paul, Weiss, Rifkind, Wharton & Garrison or another United
States securities counsel designated by the Purchaser and
reasonably acceptable to the Existing Shareholder) ("Purchaser
Counsel") deliver the Securities Law Opinion to him and the
Purchaser, which legal opinion shall be reasonably satisfactory
to the Existing Shareholder and the Purchaser. The Existing
Shareholder shall cooperate with Purchaser Counsel by delivering
customary certificates and other information reasonably requested
by Purchaser Counsel and the Purchaser shall use all reasonable
endeavours to procure that Purchaser Counsel shall either deliver
the Securities Law Opinion, or confirm that it is not able to give
such an opinion, as soon as reasonably practicable after receipt
of the relevant request from the Existing Shareholder. If
Purchaser Counsel is unable to deliver the Securities Law Opinion
with respect to the proposed transfer, then the Purchaser agrees
to enter into a registration rights agreement with the Existing
Shareholder, on customary terms and conditions, to provide the
Existing Shareholder (as soon as reasonably practicable after it
has become apparent that the Securities Law Opinion cannot be
given either by Shareholder Counsel or Purchaser Counsel) with (i)
demand registration rights for one registration statement to allow
the resale of the Common Stock acquired by the Existing
Shareholder in the Partial Offers and the Share Purchase and then
held by him (the "Subject Shares") and (ii) piggy-back
registration rights with respect to the Subject Shares.
Notwithstanding the foregoing, the Purchaser shall not be required
to provide a Securities Law Opinion or to enter into a
registration rights agreement if, in the opinion of Purchaser
Counsel (which opinion is delivered in writing to the Purchaser
and the Existing Shareholder in a form reasonably satisfactory of
the Existing Shareholder and the Purchaser), the Existing
Shareholder may resell the Subject Shares under Rule 144
promulgated under the Act (or any successor provision) within a
period of 180 days.
23. Notice of Proposed Transfers.
23.1 If, at any time on or after the second anniversary of the
Closing Date, the Existing Shareholder wishes to sell or
otherwise transfer any Shares which are Ordinary Shares
(other than in accordance with Sections 2.2 and 2.3), the
Existing Shareholder shall first notify the Purchaser in
writing of such intention and shall not enter into (or agree
to enter into) such transfer or disposition until at least 15
days after the giving of such notice. During such 15 day
period, the Purchaser or another Person designated by the
Purchaser may make an offer to purchase such Ordinary Shares
and the parties agree to discuss such offer. Under no
circumstances shall the Existing Shareholder be obligated to
sell such Ordinary Shares to the Purchaser or another Person
by virtue of this Section 3.
23.2 The provisions of Section 3.1 shall have no application to:
(a) any transfer(s) of Ordinary Shares after the second
anniversary of the Closing Date if such transfer by the
Existing Shareholder shall be made in accordance with
Sections 2.2 and 2.3; or
(b) to any transfer of less than 2,500,000 (or such greater
number as shall from time to time represent 25% of the
Ordinary Shares then held by the Existing Shareholder)
Ordinary Shares ("the Transfer Limit") Provided that
transfers exempted from clause 3.1 pursuant to this
clause 3.2 (b) shall not in aggregate exceed, during any
three month period, the Transfer Limit.
24. Directors
24.1 Election of Directors
24.1.1 In his capacity as director of the Company, the Existing
Shareholder agrees (subject to his duties as a director
of the Company) to use all reasonable endeavours to
procure that if the Partial Offers become or are declared
unconditional in all respects, the directors of the
Company shall promptly approve the appointment of Micky
Arison and Howard S. Frank as directors of the Company.
24.1.2 On or after the Closing Date, for so long as the
Purchaser owns Ordinary Shares representing at least 20%
of the Company's ordinary share capital in issue from
time to time and the Purchaser owns Ordinary Shares which
(taking full account of any sub-division and/or
consolidation of the ordinary share capital of the
Company, or any issue by the Company by way of
capitalisation of reserves, after the date of this
Agreement) represent at least 75% of the aggregate number
of Ordinary Shares acquired by the Purchaser in the
Partial Offers, the Share Subscription and the Share
Purchase, the Existing Shareholder shall vote all
Ordinary Shares and other voting securities of the
Company then held by him in all elections for directors
of the Company whether at any annual or extraordinary
general meeting of shareholders of the Company or in any
written resolution executed in lieu of such a meeting so
that the Board of Directors shall (subject to the Board
of Directors having approved the identity of the relevant
individuals as referred to in Clause 6.3 of the
Subscription Agreement) include at all times two
individuals designated by the Purchaser (the "Purchaser
Directors") Provided that the Existing Shareholder shall
not be obliged hereunder to vote all or any of his
Ordinary Shares (or other voting securities of the
Company), or otherwise comply with the provisions of this
Section 4.1.2, in respect of any resolution to appoint,
or re-appoint, to the Board of Directors of the Company
any individual whose office as a director of the Company
has been vacated pursuant to the Articles of Association
of the Company or in respect of whom a resolution of the
Company in general meeting removing him from such office
has been passed or a resolution of the Company in general
meeting in relation to his appointment or re-appointment
as a director has failed to be passed. Subject to the
other provisions of this Section 4.1, the Purchaser's
rights under the preceding sentence shall continue if the
Purchaser owns Ordinary Shares representing less than 20%
of the ordinary share capital of the Company in issue
from time to time if such percentage falls below 20%
solely by reason of the Purchaser not participating in
any issue of Ordinary Shares by the Company which is not
made available to the Purchaser (a " Restricted Share
Offer"). The provisions of the first sentence of this
Section 4.1.2 shall continue to apply, but in respect of
only one Purchaser Director (a) if the Purchaser's
percentage ownership of the issued ordinary share capital
of the Company falls below 20% other than solely by
reason of the Purchaser not participating in a Restricted
Share Offer or (b) if such percentage ownership falls
below 15% for any reason. Once the Purchaser's
percentage ownership in the ordinary share capital of the
Company has fallen below 15%, other than solely by reason
of the Purchaser not participating in a Restricted Share
Offer, or below 10% for any reason, the provisions of
this Section 4.1.2 shall be of no effect.
24.2 Removal and Replacement
After the Closing Date, the Purchaser shall be entitled at any
time and for any reason (or for no reason) to designate one or
both of the Purchaser Directors for removal. If at any time after
the Closing Date, a vacancy is created on the Board of Directors
by reason of the death, removal or resignation of any Purchaser
Director, then the Purchaser shall designate a nominee or nominees
to be elected to fill such vacancy until the next annual general
meeting of the Company, and provided that such nominee shall have
been approved by the Board of Directors as referred to in Clause
6.3 of the Subscription Agreement the Existing Shareholder shall,
as soon as practicable after the date such vacancy first occurs
and in any event prior to the transaction of any other business
by the shareholders recommend such nominee(s) to the shareholders
of the Company and at any general meeting of the Company vote all
Ordinary Shares and other voting securities of the Company then
held by him to elect such nominee or nominees. The rights of the
Purchaser under this Section 4.2 shall be reduced or extinguished
to the same extent as the rights provided for in Section 4.1.
24.3 The Existing Shareholder
For so long as the Existing Shareholder is required pursuant to
Section 4.1.2 to vote his Ordinary Shares and other voting
securities of the Company for at least one Purchaser Director and
David Crossland remains the Executive Chairman or Chief Executive
of the Company, then the Purchaser agrees that, on any resolution
relating to the appointment or re-appointment to the Board of
Directors of the Company, or removal from such Board, of David
Crossland, whether at any annual or extraordinary general meeting
of shareholders of the Company or in any written resolution
executed in lieu of such a meeting, it shall vote all Ordinary
Shares and other voting securities of the Company held by it in
favour of Mr Crossland's appointment or re-appointment to such
Board (or, as the case may be, retention on such Board) Provided
that the provisions of this Section 4.3 shall not apply in respect
of any resolution to appoint, or re-appoint, Mr Crossland to such
Board if he shall have vacated office as a director of the Company
pursuant to the Articles of Association of the Company or if a
resolution of the Company in general meeting removing him from
such office has been passed or if a resolution of the Company in
general meeting in relation to his appointment or re-appointment
to such office has failed to be passed.
24.4 Purchaser's Appointment of the Existing Shareholder
The Purchaser hereby undertakes to the Existing Shareholder that
David Crossland shall be appointed a Director of the Purchaser
immediately following the later of (i) the Closing Date and (ii)
the Purchaser's 1996 Annual Meeting of Stockholders (scheduled to
be held on April 15, 1996) and further undertakes that the
Purchaser will not thereafter remove him from the Board of
Directors of the Purchaser or procure or seek or instigate his
removal from such Board until the earliest of the following
events: (i) David Crossland ceasing to be the Executive Chairman
or Chief Executive of the Company; (ii) the rights of the
Purchaser pursuant to the provisions of Section 4.1.2 either (a)
ceasing or (b) reducing so as to apply in respect of only one
Purchaser Director where such reduction occurs for any reason
other than as a result of the issue of Ordinary Shares as
consideration in the acquisition of another Person or part or all
of the undertaking of another Person and (iii) the Existing
Shareholder ceasing to hold Common Stock which (taking full
account of any stock split, stock dividend, recapitalisation
subdivision, or other consolidation in relation to such stock
after the date of this Agreement) represents less than 500,000
shares of the Common Stock issued to the Existing Shareholder
pursuant to the Partial Offers and the Share Purchase Provided
that the Purchaser shall not be obliged to maintain (or seek to
maintain) David Crossland on its Board of Directors or to seek to
procure his re-appointment of such Board if he is not eligible to
serve as a Director under the Company's or the Purchaser's
Articles of Association or by-laws or under applicable law.
25. Exceptions to Restrictions.
(i) Without complying with Sections 2 or 3, the Existing
Shareholder may transfer any or all of his Ordinary Shares
pursuant to (a) an offer, tender offer or partial offer
commenced by any Person which is either unanimously
recommended by the Board of Directors or is recommended by
all of the members of the Board of Directors other than
Purchaser Directors or (b) a general offer made by any Person
for the entire issued ordinary share capital of the Company
(other than Ordinary Shares held by such Person or parties
acting in concert with it) or (c) a merger, recapitalization,
reorganisation, scheme of arrangement, consolidation or
similar transaction approved by the holders of the Ordinary
Shares.
(ii) Without complying with Section 2, the Existing
Shareholder may transfer any or all of his Common Stock
pursuant to (a) a tender offer or exchange offer
commenced (1) by the Company or (2) by any other Person
with respect to which the Board of Directors of the
Purchaser sends to its stockholders a statement that it
recommends such offer or is neutral with respect to such
offer, (b) a tender offer or exchange offer made by any
Person for all of the outstanding shares of Common Stock
of the Purchaser (other than shares of Common Stock held
by such Person and its affiliates) or (c) pursuant to a
merger, recapitalization, consolidation or similar
transaction approved by the holders of the Common Stock.
(iii) Notwithstanding any other provision of this Agreement,
Section 2 shall not apply to the Existing Shareholder's
participation in the Partial Offers in accordance with
his Irrevocable Undertaking dated as of the date hereof
or selling certain of his Ordinary Shares in the Share
Purchase.
26. Stock Certificate Legend
A copy of this Agreement shall be filed with the Secretary of the
Purchaser and kept with the records of the Purchaser. During the
period of two years after the Closing Date or, if shorter, the
period during which this Agreement remains in force, the parties
shall use all reasonable endeavours to cause each certificate
representing Shares to bear a legend substantially in the
following form:
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") OF ANY OF THE SECURITIES REPRE-
SENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE
SHAREHOLDERS' AGREEMENT, DATED FEBRUARY 21, 1996 (THE
"SHAREHOLDERS' AGREEMENT"), BETWEEN CARNIVAL CORPORATION (THE
"COMPANY") AND DAVID CROSSLAND[, A COPY OF WHICH MAY BE INSPECTED
AT THE COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER
THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY
UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE
TERMS OF THE SHAREHOLDERS' AGREEMENT.
In addition, the parties shall use all reasonable endeavours to
procure that such legend is removed from relevant stock and share
certificates upon the expiry of such two year period (or if
sooner, on the date on which this Agreement terminates).
27. Miscellaneous.
27.1 Notices
A notice or other communication under or in connection with this
Agreement shall be in writing and shall be delivered personally
or sent by pre-paid first class post recorded delivery (or
recorded delivery air mail if overseas) or by fax to the party due
to receive the notice or communication sent during normal business
hours in the jurisdiction of the sender (with the sender receiving
confirmation of receipt) at its address set out below (or fax
number specified below) or another address or fax number specified
by that party by written notice to the other. A notice or other
communication is deemed given when actually received (as evidenced
by the recorded delivery or the confirmation of receipt of fax).
The addresses and fax numbers of the parties for the purposes of
this Section 7.1 are as follows:
(a) if to the Purchaser:
Carnival Corporation
3655 NW 87 Avenue
Miami, Florida USA 33010
Attention: Howard S. Frank
Telecopy: (305) 471-4700
with a copy to:
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
United Kingdom
Attention: Simon Burgess
Telecopy: (+44)-171-600-5555
and
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: James Dubin, Esq.
Telecopy: 001-212-757-3990
(b) if to David Crossland:
David Crossland
Tower Hamlet
Princess Tower Road
Hougue Bie
St Saviours
Jersey JE2 7UA
Telecopy: 01534 854311
with a copy to:
Mourant du Feu & Jeune
PO Box 87
22 Grenville Street
St Helier
Jersey JE4 8PX
Attention: Conrad Coutanche
Telecopy: 01534 609333
27.2 Amendment and Waiver
(i) No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise
of any such right, power or remedy preclude any other or fur-
ther exercise thereof or the exercise of any other right,
power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be
available to the parties hereto at law, in equity or
otherwise.
(ii) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision
of this Agreement, and any consent to any departure by
any party from the terms of any provision of this
Agreement, except as otherwise expressly provided for
herein, shall be effective (a) only if it is made or
given in writing and signed by the Purchaser and the
Existing Shareholder (and by any Permitted Transferees)
and (b) only in the specific instance and for the
specific purpose for which made or given.
27.3 Specific Performance
The parties hereto intend that each of the parties have the right
to seek damages or specific performance in the event that the
other party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or
proceeding to enforce the provisions hereof, the party against
whom such action or proceeding is brought hereby waives any claim
or defense therein that the plaintiff party has an adequate remedy
at law.
27.4 Headings
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
27.5 Severability
If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any
way impaired, unless the provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
27.6 Entire Agreement
This Agreement, together with the exhibits hereto, is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to such subject matter.
27.7 Term of Agreement
This Agreement shall terminate in the event that the obligations
of the Existing Shareholder and Thomas Trickett under paragraphs
4.1 to 4.4 of the irrevocable undertakings of even date herewith
given by them to the Purchaser are terminated pursuant to
paragraph 4.5 thereof and this Agreement shall, provided that it
shall not have terminated as aforesaid, become effective upon the
Closing Date and shall be of no effect prior to that time.
Notwithstanding the foregoing, if the Closing Date does not occur
prior to May 30, 1996, this Agreement shall terminate. After the
effectiveness of this Agreement, (i) this Agreement shall
terminate if the Purchaser and its permitted transferees under the
Subscription Agreement (the "Purchaser Transferees") own less than
13,333,333 of the Ordinary Shares acquired by the Purchaser in the
Share Subscription, the Partial Offers and the Share Purchase
(taking full account of any sub-division and/or consolidation of
the ordinary share capital of the Company, or any issue by the
Company by way of capitalisation of reserves, after the date of
this Agreement) and (ii) Sections 2.1, 2.2, 2.3, 2.4 and 3 of this
Agreement shall terminate if the Purchaser and the Purchaser
Transferees own less than 26,666,666 of the Ordinary Shares
acquired by the Purchaser in the Share Subscription, the Partial
Offers and the Share Purchase (taking full account of any sub-division
and/or consolidation of the ordinary share capital of the
Company, or any issue by the Company by way of capitalisation of
reserves, after the date of this Agreement).
27.8 Variations in Pronouns
All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may
require.
27.9 Governing Law
This Agreement shall be governed and construed in accordance with
English law.
27.10 Jurisdiction and Venue.
(i) The courts of England shall have exclusive jurisdiction to
hear and decide any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection
with this Agreement (respectively, "Proceedings" and
"Disputes") and, for these purposes, each party irrevocably
submits to the exclusive jurisdiction of the courts of
England.
(ii) Each party irrevocably waives any objection which it
might at any time have to the courts of England being
nominated as the forum to hear and decide any Proceedings
and to settle any Disputes and agrees not to claim that
the courts of England are not a convenient or appropriate
forum.
(iii) Process by which any proceedings are begun in England may
be served on the Purchaser by being personally delivered
to Clifford Chance, 200 Aldersgate Street, London EC1A
4JJ marked for the attention of Simon G.F. Burgess.
Process by which any proceedings are begun in England may
be served on the Existing Shareholder by being personally
delivered to Addleshaw Sons & Latham, Dennis House,
Marsden Street, Manchester M2 1JD marked for the
attention of Paul A. Lee. Nothing contained in this
Section 7.10 affects the right to serve process in
another matter permitted by law.
27.11 Further Assurances
Each of the parties shall execute such instruments and take such
action as may be reasonably necessary to carry out the provisions
hereof and the transactions contemplated hereby.
27.12 Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors, heirs, legatees and
legal representatives. Without the consent of each of the
parties, this Agreement is not assignable except in connection
with a transfer of Shares by the Existing Shareholder to a
Permitted Transferee or by the Purchaser to any permitted assignee
of the benefit of the Subscription Agreement.
27.13 Counterparts
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed, or have caused
to be executed, this Agreement on the date first written above.
CARNIVAL CORPORATION
By:/s/ Howard S. Frank
Name:
Title:
/s/ David S. Crossland
DAVID CROSSLAND